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STATE v. MONTGOMERY

July 27, 1990.

STATE OF KANSAS, Appellee,
v.
ROBERT L. MONTGOMERY, Appellant.



Robert L. Montgomery appeals from his convictions by a jury of three counts of making a false writing contrary to K.S.A. 21-3711.

On June 15, 1988, Montgomery went to Jay Wolfe Honda in Kansas City, Kansas, with the intention of purchasing a Honda

[14 Kan. App. 2d 578]

      Accord, a Pontiac Trans Am, and a pickup. He planned to trade in two cars and a pickup.

During the course of the negotiations, checks were filled out for the Honda and for the Trans Am. A third check was signed but not filled in. The third check was signed on June 15 but dated June 18.

  The checks Montgomery executed were starter checks drawn on the account of Martin Clark at the Jackson County State Bank of Kansas City, Missouri. The checks did not have the name of the account holder printed on them. Montgomery did not know Clark and did not have permission to use the checks. The two completed checks were signed by Montgomery with the notation "hold for 24 hours" below the signature line.

  Edward McFadden, Jay Wolfe's sales manager, testified that Montgomery left the two checks for the amount of the cars with instructions to "run the check" if he did not have the cash as promised.

  Montgomery testified that he told McFadden he did not have cash for the cars but would need to arrange financing. He intended to trade in the pickup he was driving and to leave it at the lot so the new vehicles would be held for him, but as he was cleaning out the pickup, he discovered the starter checks. Montgomery said McFadden suggested he leave checks rather than the pickup. Montgomery said he told McFadden the checks were not his, but Montgomery admitted agreeing to the plan.

  There were numerous conversations, telephone calls, attempts to obtain title to trade-ins, and other dealings between the parties not material to the issue herein which resulted in Jay Wolfe Honda reporting the Honda and Trans Am as stolen. The vehicles were ultimately returned. Montgomery was charged with but acquitted of two counts of felony theft, in addition to the three counts of making a false writing, for which he was found guilty.

  Montgomery appeals the denial of his motions for new trial and judgment notwithstanding the verdict, and his application for probation.

  Montgomery raises several issues on appeal, but we will consider only the one we deem controlling.

  Montgomery was charged with making a false writing under K.S.A. 21-3711. Montgomery contends this is a general statute

[14 Kan. App. 2d 579]

      and that he should have been charged under the more specific statute of giving worthless checks in violation of K.S.A. 21-3707. We agree.

  K.S.A. 21-3711 provides:
Making a false writing. Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.
"Making a false writing is a class D felony."
A "written instrument" is defined by K.S.A. 21-3110(25) as:
"any paper, document or other instrument containing written or printed matter or the equivalent thereof, used for the purposes of reciting, embodying, conveying or recording information, and any money, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege or ...

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